Something Every Writer Should Know-Copyright and Trademarks

Disclaimer 1: All the information below is what I’ve gleaned as a non-lawyer (so-far-from-a-lawyer-that-I’m-two-steps-from-criminal), a non legal scholar, and as, possibly, a non-intellectual. Te information came from internet articles and various message boards where I asked questions. This is not legal advice, if you take legal advice from me, you might want to remind yourself that I write characters who can’t go a sentence without adding an expletive–and also that I find Benny Hill hilarious. You’ve been warned.

Disclaimer 2: This is cautionary information. I may not be 100% correct on everything. If you do take any advice from me, it’s this: if you’re going to use any material not your own, contact the publisher/company/recording studio/estate of the people who might own it.

Onto my little bit of research:

A friend of mine had me beta read her future self-published novel. I’d already read the story once, long ago, when she’d offered it free online, but that was way back before I had self-published, and long before I knew about all the various kinds of copyright infringement. Because I didn’t have a publisher to back me up should I get sued for infringement, I had to do a LOT of reading.  Now I’m savvier, having done extensive homework on using copyrighted material.

Since some of the current e-publishers aren’t very good about this either, I thought I’d post about what I found, so that, even if you’re with a publishing house, if they’re lax about editing standards, you won’t get bitten in the backside.

This is the basic rule I follow: If it’s been published, it’s copyrighted. What’s fallen into the public domain doesn’t mean there was no copyright, it means the copyright has expired. There is an exception to this rule and that is works that came about before patent an copyright laws (The Bible, for instance). (List of Countries with Copyright term length)

What this means is any line from any text/song/movie/script/commercial slogan, ex: Just Do It (someone might want to check this for me as I haven’t researched it)/novel/novella/short story/ magazine/article–ALL of it is copyrighted and that copyright could still be in effect when you attach it to your novel.

I’ll use my own examples.

When I wrote my first book, I had been perusing a writer’s forum and came across a little post about copyright. It got me thinking about things I used in my novel: ie: song lyrics, and some lines from Dr. Seuss. I went in search of copyright information and found this stunning article about Blake Morrison  a fellow author who paid more than $7,000 dollars for using a few song lyrics from, among others, Bob Marley, George Michael and Oasis.

Along with that article, I found out that Dr. Seuss’s estate sued people for copyright infringement. Needless to say, I removed all lyrics and specific lines from Dr. Seuss.

When I wrote my second novel, I made sure to attribute the lines from Butch Cassidy and the Sundance Kid, but, when it came down to the last edit, I just removed the whole thing, because I didn’t want to get sued by the studios. That story also has a reference to Tinkerbell and I wasn’t going to remove that, so I went to find out if I could use it and how much it would cost. Turns out the characters are in the public domain! \o/

The current novel I’m working on, Not So Innocent, has references to Skittles, Pixy Stix, Reese’s etc. Because I didn’t want to remove that, either, and make up things, I wanted to find out about trademark infringement. There’s a really informative article here.

The basics are:

  • Don’t muddy the brand by saying xeroxing, use Xeroxing (because that’s a name brand) (better yet, call it using a Xerox to photocopy).
  • Don’t tarnish the name–and really, this should be a no brainer. You’re mentioning someone’s product in your book, don’t denigrate it.
  • Don’t use a company’s name on something they don’t make. Ford sells cars, not scooters, don’t say they bought a Ford Scooter–people will wonder how to get one.

My friend, as mentioned above, contacted the estate of Cole Porter to find out how much it would charge her to use a few lines (I think it was 5? from an old musical). They wanted $255.  I think that’s like $50 a line. While I agree that Cole Porter’s estate deserves money, it seems to me they cut off their nose to spite their face. In an industry ripe with piracy and losing money left an right, having free publicity in books seems to me a BONUS. After all, the CDs of Kiss Me Kate, possibly the DVD of the plays, if those exist, and the subsequent downloads of the Cole Porter’s song would probably net a helluva lot more than $255. But meh, my friend is probably not going to use those lyrics, so they wind up with a big fat $0.